The case for decriminalising abortion

Many people do not realise that under the 1861 Offences Against the Person Act (OAPC), abortion remains a criminal offence unless the criteria set out in the 1967 Abortion Act are followed.

The Director of Public Prosecution’s (DPP) decision in October 2013 not to prosecute two doctors caught up in the Daily Telegraph ‘sting’ operation in February 2012, where a woman accompanied by a reporter posed as a patient requesting an abortion on grounds of foetal sex, was greeted with fury by the anti-abortion lobby and resulted in a Westminster Hall debate where normally pro-choice MPs deplored the possibility of abortion on these grounds. The DPP decided that although there were grounds to prosecute these doctors it would not be in the public interest to do so [2]. Both doctors were referred to the General Medical Council and conditions put on their registration banning them from abortion work. In early 2015 after a private prosecution was brought but failed, one doctor had the conditions lifted and the second was sent to a Fitness to Practice Tribunal where he was suspended from practice for three months. He was not found guilty of recommending an abortion illegally but guilty of a probity issue. The uncertainty and stress of this three-year ordeal was considerable but fortunately both doctors had supportive employers. The Chief Medical Officer wrote to all doctors in February 2013 setting out guidance as to how the 1967 Act should be operated although some of us had questions about her interpretation of the law.These cases, and an unrelated investigation about pre-signing the necessary forms under the 1967 Abortion Act, have had a chilling effect upon doctors working in the field of abortion.

On 4th November 2014, Fiona Bruce MP introduced a 10 minute rule bill, Abortion (Sex selection Bill) to outlaw this alleged practice which passed by 180-1, the lone dissenter being Glenda Jackson. As a private member’s bill, there was little chance of finding time for the next stage and it was withdrawn and replaced with a new clause in the Serious Crimes Act outlawing abortion on the grounds of foetal sex. This was debated in February 2015. This proposal was a departure from the way the Act had operated successfully for 46 years. Lobbying by pro-choice and women’s organisations helped educate MPs and helped to defeat this clause by 292 to 201 votes. A motion asking the Department of Health (DH) to assess the extent of the problem and, if necessary, prepare a strategy to tackle this passed almost unanimously by 491 to two votes.

The politicization of abortion and the effect of the strong and well-organized, well-funded anti-abortion lobby makes it difficult for rational decisions to be made about changing the law which is now almost 50 years old. Considerable changes have taken place in the way that abortion is carried out and medical abortions in 2014 made up 51 per cent of the procedures in England and Wales and 80 per cent in Scotland. Nurses can take the history, examine the woman and administer the pills and should be able to sign the forms required by the 1967 Act.

An investigation was ordered by the Secretary of State for Health into abortion clinics by the CQC (costing over £1million) following an inspection in January 2012 revealed pre-signing of the forms required in order to legalise an abortion. They found fourteen NHS hospitals where this was done, but in July the DPP decided that these hospitals would not be prosecuted as steps had been taken to improve compliance with the law. [3]

In 1990 when the upper limit for terminations was reduced from 28 to 24 weeks a clause was also added to allow terminations in places other than hospitals. Despite research internationally that shows home administration is possible, the DH consider that unlawful and, despite two pilot studies done in the community, the requirement that women attend hospital persists. It is irrational and against the best evidence but appears to be a response to the furore that occurs whenever abortion is discussed in public.

The OAPA 1861 (itself based on the law first passed in 1803) has also been used recently to prosecute four women. Sarah Catt in 2012 was jailed for eight years (reduced on appeal to two and a half years) for taking pills to induce labour at 39 weeks. She said the baby was stillborn but has not revealed where the body is. Natalie Towers was jailed for two and a half years in December 2015 for inducing labour at 32 weeks and delivered a stillborn baby at home. In Northern Ireland where the 1967 Abortion Act does not apply, two women are awaiting trial under the OAPA. One obtained pills from the internet for her underage daughter and appeared in court in June 2015 and the second referred herself to the police in January 2016 having taken the pills in 2012. ‘Charge me or change the law,’ was her message and she has been charged, unlike the 215 who wrote to the PSNI in June 2015 or the 100 who did so in 2013 asking to be prosecuted.

In the twenty first century it is extraordinary that women’s control over their own bodies should be constrained by a 19th century law and that women are being jailed for breaking this.

Doctors for a Woman’s Choice on Abortion (DWCA) believes that the woman should make the decision to terminate a pregnancy after consultation with her doctor, a position accepted by 70 per cent of the population and that the OAOC 1861 which makes abortion a criminal offence and the 1967 Abortion Act should be scrapped.

The original purpose of these laws was to save women’s lives and the 1967 Act followed a decade where abortion had become the leading cause of maternal death. In the 21st century when abortion is very safe and available medically there is no place for a 19th century law which exposes doctors acting in good faith to the risk of criminal prosecution. Prosecuting women who may need help with mental health issues or in the case of Northern Ireland access to legal abortion in their home country is wrong.

In November 2015 a High Court judge in Belfast ruled that the law in Northern Ireland was ‘incompatible with human rights’ [4]. The EU Charter of Fundamental Human Rights [5] became binding on member states in 2009 and under article 6 “Everyone has the right to liberty and security of person” and Article 7 “Everyone has the right to respect for his or her private and family life, home and communications.” I contend that women do have the right to bodily autonomy. Women do not take the decision to terminate a pregnancy lightly and they are in the best position to decide whether this is the right thing in the circumstances for themselves and their families. Safe abortion is available through the NHS and the requirement to obtain the agreement of two doctors is bureaucratic, outmoded and unnecessary. At the Lords stage during the passage of the 1967 Abortion Act, which set out the conditions for performing an abortion lawfully, a sentence was inserted to say that if “continuance of the pregnancy would involve risk greater than if the pregnancy was terminated” the pregnancy could be terminated. The risk to life is always greater for a continuing pregnancy than if the pregnancy were terminated before 20 weeks so this gives doctors the option of responding to the woman’s request.

It seems extraordinary that in 2016 women do not have control of their own bodies

We think the time has come for the UK to follow the example of Canada, which decriminalized abortion in 1988 without adverse consequences [6]. Anyone who agrees could send a donation to DWCA (dwca.org) to help with campaigning-and if every woman who has had an abortion in the last 46 years were to send a pound we would be able to do so more effectively.

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